Motion to strike answer was denied.
|Claimant short name:||KNIGHT|
|Footnote (claimant name) :|
|Defendant(s):||THE STATE OF NEW YORK|
|Footnote (defendant name) :|
|Judge:||Alan C. Marin|
|Claimant's attorney:||Hugh Knight, Pro Se|
|Defendant's attorney:||Andrew M. Cuomo, Attorney General
By: Roberto Barbosa, AAG
|Third-party defendant's attorney:|
|Signature date:||November 10, 2009|
|See also (multicaptioned case)|
Claimant Hugh Knight moves to strike the State's answer. In his claim, Mr. Knight alleges that while he was incarcerated at Sullivan Correctional Facility, a cane which had been medically prescribed for him was wrongly confiscated, after which he tripped and fell, injuring himself.
As to those portions of the State's answer responding to the numbered paragraphs of the claim, Mr. Knight apparently seeks to have them stricken solely on the ground that he disagrees with the responses. Such is not a valid reason for striking an answer. As to the State's affirmative defenses, they are not dispositive of a claim, and like the allegations in the claim itself, are merely assertions made by a party. Striking affirmative defenses is generally not warranted in the absence of a showing of prejudice by the claimant. See, e.g., 5 Weinstein-Korn-Miller, NY Civ Prac ¶3018.14 at 30-432. No such showing has been made here.
In view of the foregoing, having reviewed the submissions(1) , IT IS ORDERED that motion no. M-77219 be denied.
November 10, 2009
New York, New York
Alan C. Marin
Judge of the Court of Claims
1. The following were reviewed: claimant's notice of motion with affidavit in support and Exhibits A through K; defendant's affirmation in opposition; and claimant's reply submission, entitled "Notice of Motion to Dismiss Defendant's Affirmation in Opposition to Claimant's Motion."